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HIGH COURT OF ANDHRA PRADESH (L.B.)
Naik, Khaliluzzaman Siddiqui, Sripat Rao, Manohar Pershad, M. A. Ansari, Siadat Ali Khan, Srinivasachari, JJ.
STATE OF HYDERABAD
V/S.
SIDLINGAPPA
Decided On : 18 December, 1950
CRIMINAL PROCEDURE - Renewal of evidence - Sessions Judge - Whether necessary - Principle of English Criminal Law - Applicability - Intention of the Legislature - Prejudice to the accused - Order of acquittal - Consent of the prosecution - Effect.
Fact of the Case:
The accused were acquitted by the Additional Sessions Judge, Gulbarga, on the evidence recorded by his predecessor. The State filed an appeal, and the Division Bench referred the case to a Full Bench, which in turn referred the following questions of law to a Bench of seven Judges: 1. Whether the case reported in Laxman v. Sircar Ali 11 Deccan LR 123, could be deemed good law, having regard to the amendment to Section 281, Hyderabad Criminal Procedure Code, and the divergent decisions of this Court (Full Bench of five Judges)? 2. Whether the general principle that only the Judge who has recorded the evidence in the case is competent to deliver judgment in it, applies to a judgment, by which an order of acquittal is recorded? 3. Whether the complainant who has not objected to the use of evidence at the time of judgment could object to it in appeal and on that ground get the order of acquittal set aside.
Finding of the Court:
1. The Full Bench case reported in Laxman v. The State 11 Deccan LR 123 is regarded as good law in so far it relates to Section 281 of the Criminal Procedure Code that its provisions are not applicable to a case before the Sessions Judge, but is not regarded as good law to the extent that if the Magistrate bases his judgment on the evidence recorded by his predecessor is a nullity; 2. The principle of renewal of evidence applies to the order of acquittal also; 3. The complainant can object to the use of evidence in appeal but it would be left to the Appellate Court to exercise its discretion and the Appellate Court would interfere only if it comes to the conclusion that the lower Court Judge by acting upon the evidence recorded by his predecessor has fallen into a palpable error which has resulted in failure of justice.
Issues: 1. Whether the case reported in Laxman v. Sircar Ali 11 Deccan LR 123, could be deemed good law, having regard to the amendment to Section 281, Hyderabad Criminal Procedure Code, and the divergent decisions of this Court (Full Bench of five Judges)? 2. Whether the general principle that only the Judge who has recorded the evidence in the case is competent to deliver judgment in it, applies to a judgment, by which an order of acquittal is recorded? 3. Whether the complainant who has not objected to the use of evidence at the time of judgment could object to it in appeal and on that ground get the order of acquittal set aside.
Ratio Decidendi: 1. The principle that every Judge should base his judgment on the evidence which he has himself recorded is not recognized in the Criminal P.C. except in Section 281; hence if Section 281 is not applicable to Sessions Judges., it means that the law has not considered it desirable to apply this principle to Sessions Court and to other Higher Courts. 2. The provisions of Criminal Procedure Code do not show that the Legislature intended that renewal of evidence should be necessary on a change of Bench in Sessions trials. 3. An order of acquittal does not come under the criterion of prejudice to the accused and such an order cannot be set aside even if the judgment of a Sessions Judge directing an acquittal was based on evidence learned by his predecessor. 4. Consent will be presumed. An accused cannot by consent bind himself but prosecution has always been recorded to be in a better position and can in a way agree to many things.
Final Decision: 1. The Full Bench case reported in Laxman v. The State 11 Deccan LR 123 is regarded as good law in so far it relates to Section 281 of the Criminal Procedure Code that its provisions are not applicable to a case before the Sessions Judge, but is not regarded as good law to the extent that if the Magistrate bases his judgment on the evidence recorded by his predecessor is a nullity; 2. The principle of renewal of evidence applies to the order of acquittal also; 3. The complainant can object to the use of evidence in appeal but it would be left to the Appellate Court to exercise its discretion and the Appellate Court would interfere only if it comes to the conclusion that the lower Court Judge by acting upon the evidence recorded by his predecessor has fallen into a palpable error which has resulted in failure of justice.
Srinivasa Chari, J
[1] It is a fundamental principle of Criminal Law that no judicial officer should ordinarily convict an offender on the evidence which he had no opportunity to record and to hear. The underlying principle is that only the Judge who has had the opportunity of watching the conduct, expression and demeanour of the witnesses is in a better position to judge about the guilt or innocence of an offender. But Section 281 of the Hyderabad Criminal Procedure Code corresponding to Section 350 of the Indian Criminal Procedure Code provides a carefully limited exception to this salutary principle of natural justice that "he alone may decide who has heard the evidence." This exception was introduced for the first time in the Code of 1898. Section 281 gives the discretion to a Magistrate to act upon the evidence recorded by his predecessor, but this discretion is curtailed and circumscribed so that if the accused demands that the witnesses whose statements were recorded previously by a Magistrate who has been transferred should be recalled and re-examined, the Magistrate shall summon them and examine them over again and in such a case the evidence recorded by his predecessor would be of no use. A Magistrate cannot act upon the evidence and it will have to be ignored. This discretion to act upon the evidence recorded by the predecessor and decide the case has not been given to a Sessions Judge and the trend of decisions in the Indian Union is that where a Sessions Judge acts upon evidence recorded by his predecessor his decision is vitiated regardless of the fact whether the accused is prejudiced thereby or not. Evidently an exception was created in the cases before Magistrates at the instance of the Government on the ground of expediency and convenience because the Magistrates were transferred frequently after they had recorded evidence partially and in consequence of the transfer the trial had to be started 'DE NOVO'. This led to delay in criminal proceedings and sometimes owing to the long delay proper Justice could not be meted out. Somehow or other the Sessions Judge is not given the power to decide upon the evidence recorded by his predecessor. Evidently the necessity was not felt because Sessions Judges were not as frequently transferred as the Magistrates. This would show that the object of the legislature is to adhere as far as possible to the principle that 'he alone should decide who has heard the evidence'. The legislature did not want to depart from this salutary principle of justice, as far as it could be followed.
[2] The question often arises where a discretion has been given to the Magistrate under Section 281 of Criminal Procedure Code to act upon the evidence recorded by his predecessor, whether if such a discretion were given to the Sessions Judge, it would infringe any accepted principle of law. This discretion has been given only on grounds of expediency. Would it around to want of jurisdiction if the Sessions Judge acted upon the evidence of his predecessor? With regard to this question some of the High Courts of the Indian Union have held that it goes to the root of the matter and the Sessions Judge has no jurisdiction. The Rangoon Rich Court has held in the case of Ngasan Tin v. Emperor AIR (17) 1930 Rang 354, that the Sessions Judge has no jurisdiction to pass a sentence on the evidence recorded wholly or partly by his predecessor and the consent of the accused cannot give him jurisdiction. But if we go through the decisions under Section 350 of the Indian Criminal Procedure Coda which corresponds to Section 281 of the Hyderabad Criminal Procedure Code, it would appear that although the accused has the right to demand that there should be a 'DE NOVO', trial where the Magistrate has not recorded the whole of the evidence, but still where previous depositions have been treated as part of the record as the request of the accused, such a trial has been held to be not illegal. In this connecti
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